Report No. 9422, Sheriff 9422
STATE OF FLORIDA
OFFICE OF THE AUDITOR GENERAL
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*** MONROE COUNTY ***
SHERIFF
For the Period
January 4 , 1977 to March 31 , 1978
9422
STATE OF FLORIDA
OFFICE OF THE AUDITOR GENERAL
Report on Audit
of the Accounts of the
MONROE COUNTY
SHERIFF
For the Period
January 4, 1977 to March 31, 1978
Dated: January 26, 1979
of.P.ft?
"'tjIkt STATE OF FLORIDA
'tl2 OFFICE OF THE AUDITOR GENERAL
°.....a'.
ERNEST ELLISON,C.P. A.
AUDITOR G[NERAL
Tallahassee, Florida
January 26, 1979
The Legislative Auditing Committee
of the Legislature
and the
Governor of Florida
Sirs:
Pursuant to the provisions of Section 11.45, Florida
Statutes, I have directed that an audit be made of the accounts and
records of the
HONORABLE WILLIAM A. FREEMAN, JR.
MONROE COUNTY
SHERIFF
For the Period Beginning January 4, 1977 ,
the Beginning of His Term of Office,
and Ending March 31, 1978 ,
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No.
and present this report thereon.
(1) The objectives of this audit were: (1) to express an
opinion on the financial statements for the period ended March 31,
1978 , and (2) to report violations of law and other matters required
by Section 11.45 (6) (c) , Florida Statutes, that may be determined by
audit tests.
(2) My examination did not include transactions relating to the
Inmate Trust Fund as it constituted private funds that were not
commingled with official funds.
(3) Since the income of the Office is reported on the basis of
fiscal years, the results of operations of the General Fund and
Special Revenue Funds are shown for the entire fiscal year 1976-77.
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SCOPE AND OPINION
(4) I have examined the financial statements of the various
funds and account groups of the Office of the Monroe County Sheriff
for the period January 4, 1977, to March 31, 1978, as to the Trust and
Agency Funds, and for the fiscal year ended September 30, 1977, and
the fiscal year ending September 30, 1978, to March 31, as to the
other funds and account groups. My examination was made in accordance
with generally accepted auditing standards and, accordingly, included
such tests of the accounting records and such other auditing
procedures considered necessary in the circumstances .
(5) In my opinion, the accompanying financial statements present
fairly the financial position of the Office of Monroe County Sheriff
at March 31, 1978, the results of operations of the General Fund and
the Special Revenue Funds for the fiscal year ended September 30,
1977, and the fiscal year ending September 30, 1978, to March 31, and
the cash receipts and disbursements of the Trust and Agency Funds for
the period January 4, 1977, to March 31, 1978, in conformity with
generally accepted accounting principles applied on a consistent
basis.
FINANCIAL POSITION
(6) The financial position of the various funds and account
groups at March 31, 1978, is shown on exhibit A.
FINANCIAL OPERATIONS - GENERAL FUND
Revenues and Expenditures
(7) A statement of budgeted and actual revenues and expenditures
for the General Fund is shown on exhibit B.
(8) The annual reports required by Sections 116.03 and 218.36,
Florida Statutes , were properly filed with the Department of Banking
and Finance and the Board of County Commissioners. Except for $229. 58
as shown on exhibit J, note 2, the unexpended budget balance for the
fiscal year ended September 30, 1977, was refunded to the county.
(9) Monthly automobile allowances of $150 to the Sheriff and
from $50 to $150 to several deputies were paid for the official use of
their private automobiles. In addition, the operation and maintenance
costs for gasoline, oil , lubrication, washing, and insurance were also
provided , as authorized by Chapter 65-1062, Acts of 1965.
(10) Section 112. 061 (13) , Florida Statutes , provides that
"Whenever an agency requires an employee to incur either Class A or
Class B travel on emergency notice to the employee , such employee may
request the agency to pay his expenses for meals and lodging directly
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to the vendor , and the agency may pay the vendor the actual expenses
for his meals and lodging during the travel period , limited to an
amount not to exceed that authorized for per diem for such period ."
For most travel incurred during the audit period it was the usual
procedure for the Sheriff to pay the vendor directly for the
employee' s lodging. Payments made directly to vendors for lodging did
not contain evidence showing that the employees were required to
travel on emergency notice and that such employees had requested that
the Sheriff pay the lodging expenses directly to the vendor.
(11) Travel advances were made to the Sheriff' s employees to
cover anticipated costs of travel , as authorized bySection
112. 061 (12) , Florida Statutes. Established procedures provided for
the traveler to receive the advance , perform the travel , submit a
travel voucher to the Sheriff's accounting department covering
expenses incurred , and refund the advance upon receipt of the travel
reimbursement. My review of travel advances and reimbursements
disclosed several instances wherein advances were made but travel
vouchers had not been submitted nor had the advance been settled as of
August 17, 1978. In one instance, a $100 advance made on January 21,
1977, had not been settled after almost 19 months. Long delays were
noted in the settlement of other advances. Examples of delays and
nonsettlement of travel advances are as follows :
Advance Dates of Travel Actual Expenses Date Travel
Warrant Date Amount Date Amount Advance
Number Paid Returned
1025 1-14-77 $130.00 1-16-77 to 1-21-77 4-12-77 $109.50 6-14-77
1026 1-14-77 130.00 1-16-77 to 1-21-77 4-12-77 109.50 6-14-77
1100 1-21-77 150.00 1-24-77 to 1-27-77 2-15-77 130.45 3-15-77
1101 1-21-77 100.00 (1)
1240 2- 7-77 100.00 2-8-77 to 2-11-77 4-12-77 84.50 6-14-77
1241 2- 7-77 100.00 2-8-77 to 2-11-77 4-12-77 84.50 6-14-77
2618 7- 6-77 175.00 (1)
3176 10-27-77 285.00 10-27-77 to 11-4-77 11-30-77 285.00 1- 5-78
3206 9-20-77 105.00 (1)
3415 11-21-77 35.00 31-21-77 to 11-22-77 11-30-77 52.50 1-20-78
3487 9-30-77 300.00 (1)
3488 9-30-77 300.00 (1)
3920 1- 4-78 140.00 (1)
4060 1-25-78 52.50 (1)
Note: (1) Travel voucher not submitted and travel advance not returned as of
August I7, 1978.
I recommend that the established procedures be followed strictly or ,
in the alternative, that travel reimbursements be made only for any
excess of the actual travel expense over the cash advance, and that
regular reviews be made of cash advances to assure prompt settlement.
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(12) Expenditures for investigations are shown on exhibit B.
Section 30. 50 (2) , Florida Statutes, provides that the Sheriff may draw
a check to himself for the expense of an investigation and may note on
the voucher only the information that he may consider proper to
divulge. Accordingly, absent the usual detailed and documented
voucher , my examination of investigation expense included only a
review of the check drawn to the Sheriff and did not include a
determination of the ultimate beneficiary of these funds.
(13) In general , expenses of the Office were adequately supported
by itemized invoices or payrolls. Some exceptions were noted and are
discussed in the following paragraphs.
(14) Improvements were needed in the records and procedures to
control long-distance telephone calls. Most long-distance calls were
not supported with information showing the person making the call , the
person and place called , the time of the call , and the purpose of the
call . I recommend that a log containing this information be kept for
all long-distance calls.
(15) Fees and expenses paid to the Sheriff' s Attorney, Howard
Levine, totaled $42, 346. 11 during the period covered by this audit.
This amount included $30, 331.60 for attorney fees and expenses
involving the seized motor vehicles and vessels that are discussed
under the heading , SEIZED AND ABANDONED PROPERTY (page 6) . There was
no written contract between the Sheriff and his attorney for the
amounts paid . Attorney fees were billed at rates of $300 per day, $60
per hour , or at a stated amount for handling a particular case.
Expenses paid included travel to Key West from the Attorney' s office
located in Fort Lauderdale, Florida. On a billing from the Attorney
dated February 1, 1978, travel expenses included the following :
Date of Travel Description Amount
January 5, 1978 Airfare $50. 00
Lodging 50. 00
Meals 25. 00
January 16, 1978 Airfare 50.00
Lodging 96.00
Meals 25. 00
January 26, 1978 Airfare 50. 00
Lodging 96. 00
Meals 25. 00
These travel expenses were included in a $2, 925.86 payment on February
15, 1978, check No. 4226. Billings for travel sometimes stated only
"travel" as the description of the amount billed, and on some, the
dates of travel were not shown. Travel expenses were not paid
pursuant to the provisions of Section 112. 061, Florida Statutes.
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(16) The Sheriff' s Attorney was concurrently an appointed Special
Assistant State Attorney of the Sixteenth Judicial Circuit (Monroe
County) from February 15, 1977, until after the close of the audit
period .
(17) Ten new patrol cars were ordered by the Sheriff from Duncan
Ford-Lincoln-Mercury under a negotiated-purchase plan. Additional
comments concerning these patrol cars are under the heading , SEIZED
AND ABANDONED PROPERTY (page 6) .
(18) Supporting documentation for payments to private marinas
sometimes did not identify the vessels receiving the gasoline or
services. Those noted were as follows :
Marina Warrant
No. Date Amount Purpose
Perdue Dean, Inc. 1093 1-20-77 $ 32. 02 Gasoline
Max ' s Marine, Inc. 1835 4-20-77 136. 50 Lift Service and 150
Gallons of Gasoline
Marina Rescue Service
and Repair 2329 5-31-77 318. 75 Raising Boat
Caloosa Cove Marina 3850 12-31-77 36. 67 Gasoline
Plantation Harbor 4281 2-23-78 26. 80 Gasoline
Compensation
(19) The Sheriff' s compensation was governed by Chapter 145,
Florida Statutes , and was correctly paid .
Retirement and Social Security
(20) The Sheriff deducted proper amounts for retirement and
social security contributions from salaries paid to eligible
employees. These contributions , together with those for his personal
account , were promptly remitted .
Insurance
(21) Insurance coverage included automobile liability and
comprehensive; airplane liability; fire and extended coverage on
office contents; comprehensive dishonesty, disappearance, and
destruction policy for money and securities; blanket deputy sheriffs'
bond; law enforcement liability; and public employees blanket bond .
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FINANCIAL OPERATIONS - SPECIAL REVENUE FUNDS
(22) A statement of budgeted and actual revenues and expenditures
for the Special Revenue Funds is shown on exhibit E.
(23) During the audit period the Sheriff was awarded grants for
three Federally-funded Law Enforcement Assistance Administration
projects which were administered by the State. As of March 31, 1978,
no expenditures had been made for the Monroe County 911 System
Project , which was for the purchase and installation of a logging
recorder and instant playback for the 911 emergency telephone system.
In addition, there were no expenditures for the Youth Aid Bureau
Project, which was for the period from January 1, 1978, to April 30,
1978.
(24) The Regional Criminal Justice Communications System Project,
begun in 1976, was for a new high frequency radio communication system
for the Sheriff ' s Office.
(25) Separate bank accounts and adequate financial records were
maintained for the above projects.
FINANCIAL OPERATIONS - TRUST AND AGENCY FUNDS
(26) A statement of cash receipts, disbursements , and balances
for trust collections in the Trust and Agency Funds is shown on
exhibit G. Included are the funds collected and disbursed by the
Sheriff' s attorney and by a local automobile dealer as discussed under
the heading , SEIZED AND ABANDONED PROPERTY (page 6) .
(27) The fund balance in the Trust and Agency Funds, as shown on
exhibits A, F, and H, is the amount credited to the Sheriff ' s account
with the automobile dealer for the ten new patrol cars ordered but not
received as of March 31, 1978.
(28) The asset account, " Insurance Claim Receivable ," shown on
exhibits A and F, represented a claim of $350 against the insurance
company for the proceeds of a cash appearance bond received on October
26, 1977, that had been lost or misplaced . The claim was paid by the
insurer on April 30, 1978 , after the close of the audit period .
SEIZED AND ABANDONED PROPERTY
Records and Procedures
(29) Records and procedures were not adequate to control and
account for lost , abandoned, unclaimed , and seized personal property.
Receipt forms issued for this property were not prenumbered. Numerous
instances were noted whereby items listed on investigative case
records could not be located on the completed receipt forms which were
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on file . Seized and abandoned property was kept in locked storage
areas at Key West and the Marathon and Plantation Key substations. It
was noted that approximately two ounces of hashish and approximately
30, 000 marijuana seeds seized on April 28, 1977 (case No. P77-3907) ,
were still being stored in a deputy' s desk on May 31, 1978. Records
were kept of items removed from storage, but periodic follow-ups were
not made to ascertain that property was returned to storage when
appropriate. Regular inventories of the seized and abandoned property
were not taken and compared with the records.
(30) The proper accountability and control of this property can
be obtained through the use of prenumbered printed receipt forms that
are controlled as to assignment and use.
(31) Recommended handling and storage procedures outlined in the
Florida Sheriffs' Manual call for such property to be kept in a
central storage area , to the extent possible, under the supervision of
a custodian. Periodic inventories by someone independent of the
storage function are recommended , together with adequate recording of
all removals and returns to central storage. The adoption of such
handling procedures would possibly have prevented the following
results of mishandling disclosed by my audit tests :
1. The storing in the deputy' s desk, as noted above, of the
hashish and the marijuana seeds.
2. The following items, indicated by property receipts and
investigation reports to be on hand, could not be
located :
Sheriff ' s Date Taken Description
Case No . into Custody
K77-845 3-10-77 Two suitcases containing expensive clothing .
M7 7-2674 3-19-77 One Pocket Instamatic 104 Kodak Camera and
packet of miscellaneous ID's, pictures, and
credit cards addressed to the owner.
K77-1338 4-21-77 One CB radio located in a seized vehicle.
K77-1537 5-14-77 One gold 10-speed bicycle.
P77-4738 8- 8-77 One Econoline Ford Van, one RCA television,
and a silver colored metallic flute in a
hard case.
K77-2338 8-16-77 One 1969 Pontiac GTO, Florida license tag
No . AFP 132, impounded in connection with
narcotics violation.
P78-3064 1- 9-78 One "Garelli" Moped , S/N DGM100810M, and one
"Carabela" Moped , S/N mm00689875.
M78-2486 2-28-78 One blue "Huffy" bicycle.
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The seized vehicle from which the CB radio was missing , as noted in
case No. K77-1338, was a 1976 GMC pickup truck which was forfeited to
the Sheriff pursuant to a court order dated October 17, 1977. At the
close of the audit period the vehicle was being used by the Sheriff ' s
organized crime unit.
Destruction of Evidence
(32) Records provided for audit did not indicate that public
notice was given, as required by Section 705. 16, Florida Statutes, for
the destruction on August 18, 1977, of a Sears color television set
(case No . K77-1365) . Records show the television set as "Found
Property."
(33) Section 893. 12 (1) (a) , Florida Statutes, provides that the
court having jurisdiction shall order controlled substances forfeited
and destroyed . A record of the place where the controlled substances
were seized , of the kinds and quantities destroyed, and of the time,
place, and manner of destruction shall be kept and a return under oath
reporting said destruction shall be made to the court and to the
United States Bureau of Narcotics and Dangerous Drugs by the officer
who destroys them. On March 7 , 1978, one clear plastic bag containing
approximately 10 grams of marijuana was given to a Sheriff' s detective
for investigative purposes by an employee of the Monroe County
District School Board. Records provided for audit show that the
marijuana was destroyed on April 12, 1978, without the required court
order .
(34) Audit tests revealed some differences between the quantities
of controlled substances seized and the amounts reported to the courts
as having been destroyed . These cases, identified by the Sheriff's
case numbers , were as follows :
1. Case No. K77-1279. On April 14, 1977, one bale
containing 20 three-pound "zip lock" type clear plastic
bags (each containing three one-pound sealed plastic
packages) of hashish was seized . The court, on August
2, 1977, ordered the destruction of this hashish. The
return to the court dated August 26, 1977, reporting the
destruction stated that 20 one-pound packages had been
destroyed by fire on August 24, 1977. This was 40
pounds less than the amount seized.
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2. Case No. P77-3731. On April 7 , 1977, a total of 2, 215
sealed clear plastic wrapped one-pound packages of
hashish were seized . Court orders dated July 13, 1977,
and March 8, 1978, ordered the destruction of this
hashish . The return ; to the court dated August 26,
1977, and March 28, 1978, stated that 2, 163 "three-pound
packages" were destroyed by fire on August 24, 1977, and
51 "packages" were destroyed on March 17, 1978.
Assuming that the 2, 163 "three-pound packages" were
actually one-pound packages and the 51 "packages" were
also one-pound packages , then a total of 2, 214 pounds
were destroyed . This was one pound less than the amount
seized .
3. Case No . P77-3735. On April 8 , 1977, a total of 60 one-
foot square packages of hashish each wrapped in clear
plastic were seized. The court on March 8, 1978,
ordered 57 packages of this hashish destroyed . The
return to the court dated March 28, 1978, reported that
57 packages were destroyed on March 17, 1978. The
remaining three packages could not be physically located
when requested for audit verification. Available
records indicated that a property custodian released all
60 packages for destruction at 3: 00 a.m. on March 17,
1978.
Sheriff employees explained the differences noted above for cases
K77-1279 and P77-3731 as typographical errors made when the returns
were typed and that the total amounts seized had actually been
destroyed . No explanation was given for the difference of three
packages as discussed above for case No . P77-3735.
(35) Some court orders for the destruction of controlled
substances stated that the Sheriff had set aside and was holding
samples of the controlled substances seized; however , the samples or
the Sheriff' s records of such samples were not located for the
following cases :
1. Case No . K77-1279. The court order dated August 2, 1977,
for the destruction of the hashish seized on April 14,
1977, as discussed for item No . 1 in the preceding
paragraph , stated that "The Monroe County Sheriff' s
Department has set aside adequate samples demonstrating
the uniformity of the contained material and has been
removed from the bale and so sampled . These samples are
being held for evidentary (sic) purposes . . . .
2. Case No. P77-3735. The court order dated June 27, 1977,
for the destruction of 336 one-pound packages of hashish
seized on April 8 , 1977, stated that "The Monroe County
Sheriff' s Department has set aside adequate samples
demonstrating the uniformity of the contained material
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and has been removed from the packages and so sampled .
These samples are being held for evidentary (sic)
purposes . . . .
3. Case No. K77-3698. The court order dated February 28,
19/8, tor the destruction of 53 plastic bales of
suspected Cannabis Sativa, L. (marijuana) , stated that
representative core samples, each weighing more than
five grams, had been taken from ten bales and that ,
"These core samples are being held for evidentiary
purposes . . . .
It was stated by Sheriff' s employees that the court orders for
destruction were prepared by the Sheriff' s Criminal Division and
presented to the court by the State Attorney' s Office and that the
crime laboratory and property division were never notified to take the
above samples.
Forfeited Weapons
(36) Pursuant to Section 790. 08 (2) , Florida Statutes, the Sheriff
is the custodian for all weapons and firearms that become forfeited to
the State. All weapons, electric weapons or devices, and arms
confiscated , loaned , or otherwise disposed of by the Sheriff shall be
reported to the Florida Department of Criminal Law Enforcement as
required by Section 790.08 (7) , Florida Statutes. Such reports were
required to be filed by the tenth of each month on forms furnished by
the Department . These forms, when completed, provided information as
to serial number , complete description, weapon status, date
confiscated , and reason for forfeiture. The records provided for
audit did not indicate that these reports were filed for 19 weapons
and firearms confiscated, loaned , or otherwise disposed of during the
audit period .
(37) The Sheriff' s records also did not show the reason why three
handguns confiscated during the audit period were forfeited to the
State. At March 31, 1978, two of these guns had been issued to
deputies for use in their official capacities. The third gun was
stored in a locker at the Plantation Key substation. All weapons and
firearms forfeited to the State were normally included in the
Sheriff' s tangible personal property records; however , these three
handguns were not included in the property records.
Seized Motor Vehicles and Vessels
(38) Under the provisions of Sections 943. 41 through 943. 44,
Florida Statutes (the "Florida Uniform Contraband Transportation
Act" ) , and Section 893. 12, Florida Statutes, numerous vessels and
motor vehicles that were employed in the unlawful transportation of
controlled substances (as defined in Chapter 893, Florida Statutes)
were seized during the audit period . The powers and duties of the
Sheriff relative to abandoned and seized property appear to be set
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forth in three basic provisions of law. Sections 705. 01 through
705.08, Florida Statutes, set forth procedures to be followed by a
county sheriff with reference to abandoned property. Sections 705. 09
through 705. 15, Florida Statutes , which relate specifically to a
county sheriff, apply generally to any property seized because the
same was used in violation of any statutes or laws of this State which
direct that property so used shall be subject to forfeiture and sale.
Sections 943. 41 through 943. 44, Florida Statutes, relate generally to
all law enforcement officers , but apply specifically to motor
vehicles , vessels, and aircraft used to transport a "contraband
article" (which includes controlled substances) as that term is
defined in Section 943. 41 (2) , Florida Statutes.
(39) During the audit period, many motor vehicles and vessels
seized pursuant to Section 943. 43, Florida Statutes , were forfeited to
the Sheriff pursuant to court orders issued by either the County Court
or the Circuit Court. These forfeitures were secured in the County
Court pursuant to the procedures set forth in Section 705. 13, Florida
Statutes, and in the Circuit Court by the procedure set forth in
Section 943. 44, Florida Statutes. In instances where the Sheriff has
seized property as being in violation of the Florida Uniform
Contraband Transportation Act, he should seek the forfeiture of said
property under the specific procedures set forth in the Act, that is,
Section 943. 44, Florida Statutes, and not under the general procedures
set forth in Sections 705. 09 through 705. 15, Florida Statutes. In his
written response to the audit findings, the Sheriff incorporated
ATTACHMENT G, wherein the Police Legal Advisor referred to my
conclusion that the Sheriff should seek the forfeiture of property
pursuant to Section 943. 44, Florida Statutes; he (the Legal Advisor)
stated that my conclusion is improper as it would foreclose the right
of the Sheriff as a constitutional officer to an election of remedies.
As to this, I note opinion No. 076-43, 1976 AGO 75, wherein the
Attorney General found that the "obvious legislative intent" in the
enactment of Sections 943. 41-44, Florida Statutes (the Uniform
Contraband Transportation Act) , was to create "uniformity" in the
procedures by which "contraband and that which is used in transporting
this contraband are to be legally seized and forfeited" . The Police
Legal Advisor then stated that in making my conclusion. .as to the
above, I "over-stepped the boundries (sic) of (my) office and approved
and generally accepted audit procedures" ; as to this, I note that
under Section 11. 45 (6) (c) , Florida Statutes, I am specifically
required to make special mention in the audit report of all
irregularities as to the office audited .
(40) It is noted that in several instances petitions for
forfeiture of seized personal property were dismissed by the Sheriff
without order of the Court . There is no legal authority for the
Sheriff to voluntarily (without an order from the Court) dismiss a
petition for forfeiture (see Rule 1. 420 (a) (1) , Florida Rules of Civil
Procedure) .
(41) Seized motor vehicles and vessels for which the Sheriff
filed forfeiture cases during the audit period were as follows :
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Disposal of Forfeited Property
(42) Section 943. 44, Florida Statutes, provides that whenever it
is deemed necessary or expedient to sell the property forfeited rather
than retain it for the use of the law enforcement agency, notice shall
be made by publication as provided by law and thereafter the property
shall be disposed of at public auction to the highest bidder for cash
without appraisal . The proceeds of all funds collected from any such
sale shall be paid into the fine and forfeiture fund of the
municipality or county whose law enforcement agency made the seizure,
forfeiture, and sale . The dispositions of seized property as
determined by the court in Sections 705. 13 and 705. 14, Florida
Statutes , provide that the sales of such property shall be a public
sale to the highest and best bidder for cash after two weeks public
notice as the court may direct. All sums received from the sale or
other disposition of the seized property shall be paid into the State
Treasury for the benefit of the State School Fund and shall become
part thereof. These procedures for disposal were not followed by the
Sheriff for seized and forfeited motor vehicles and vessels disposed
of by him during the audit period. Funds totaling $90, 250,
representing the net credit in the Sheriff' s account at Duncan Ford-
Lincoln-Mercury as a result of forfeiture actions under Chapter 705,
Florida Statutes , were thus diverted from the State School Fund . In
the Sheriff' s written response to the audit findings, he has
incorporated ATTACHMENT G, wherein the Police Legal Advisor took the
position that the Sheriff' s trading of a contraband vehicle or vessel
for items of Police equipment constitutes a valid use by him of the
property, and the Advisor refers to my contrary position that property
was diverted by the Sheriff from the State School Fund; as to this, as
pointed out in my audit report, the applicable statutes expressly set
forth the requirement that proceeds of the property seized under
Chapter 705 (if properly seized) must be deposited into the State
School Fund .
Transactions Related to Securing Ten
New Patrol Automobiles
(43) Prior to March 31 , 1978, the Sheriff ordered ten new fully
equipped 1978 Ford LTD II patrol cars from Duncan Ford-Lincoln-Mercury
with expectations of paying for them with the seized and forfeited
motor vehicles and vessels. The total cost of the ten new patrol cars
that were not received by the Sheriff until after the end of the audit
period was $92, 412. 96 (base price of $6, 500 each, plus $2, 741+ for
additional equipment for each patrol car) .
(44) The forfeited motor vehicles not kept by the Sheriff for
official use were traded to Duncan Ford-Lincoln-Mercury for a credit
against the purchase of these new patrol cars as shown on the listing
of forfeiture cases filed during the audit period. This is contrary
to the provisions of law as discussed above. In ATTACHMENT G to the
Sheriff' s written response to the audit findings, the Police Legal
Advisor states that the fact is that there is no law which
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specifically prohibits the Sheriff from using "forfeit" (sic) property
by trading the property for badly needed Police equipment and thereby
securing a double benefit for the citizens within the Sheriff' s
jurisdiction; and he further states that in the final analysis the
direct use of drug smuggler' s property to acquire Police vehicles and
other Police equipment is both innovative and just; as to this, I have
already pointed out in my audit report that under both Chapters 705
and 943 there is no provision authorizing the Sheriff to trade
forfeited property for credit or for other property, but rather that
he must comply with applicable procedures prescribed in those laws;
furthermore , as was also pointed out in my audit report, in the
acquisition of property for official use of the Sheriff , he must
follow applicable provisions of the Sheriff' s budget law (Chapter 30,
Florida Statutes) .
(45) Except for the 1973 Susy boat kept by the Sheriff for
official use , all forfeited vessels were traded to private individuals
or corporations . The 1972, 36 ' Husky "Santa Barbara" was traded for a
"Star-Tron" night vision scope and the other vessels were traded for
new patrol cars . The private individuals and corporations did not
actually purchase new patrol cars and then exchange them for the
forfeited vessels. Instead , they paid Duncan Ford-Lincoln-Mercury an
amount of money that was applied to the purchase of the new patrol
cars that had been ordered by the Sheriff. An invoice to the Sheriff
from Duncan Ford-Lincoln-Mercury dated May 3, 1978, for the ten new
patrol cars contained the statement , "Sold to Monroe County Sheriff' s
Department ."
(46) There is no authority for the Sheriff to dispose of property
seized and forfeited under either the Uniform Contraband
Transportation Act or Sections 705.09 through 705. 13, Florida
Statutes , in any manner other than that which is set forth in those
laws . Neither law contains any provision authorizing the Sheriff to
trade forfeited vehicles to a commercial dealer for credit or to a
private individual for other property. The Sheriff should comply with
the applicable laws when disposing of this property.
(47) The trades of vessels for patrol cars as shown on records
provided for audit were made pursuant to the following terms :
1. In a letter to the Sheriff dated November 20, 1977, a
Sheriff' s deputy offered " . . . one (1) , fully equipped
1978 Ford LTD squad car . ." for the 1968, 31 '
Bertram boat. As noted previously, the deputy paid
Duncan Ford-Lincoln-Mercury $7, 500 on November 23, 1977.
An appraisal as to the value of the 31 ' Bertram boat was
not available and the sale was not made pursuant to
competitive bids.
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2. The "Bill of Sale" dated November 11, 1977, for the 1966,
44 ' Pacemaker Cabin Cruiser stated that, "This date, the
Monroe County Sheriff' s Department , Monroe County,
Florida, has traded the motor vessel , . to Wyatt
Yacht Sales, Inc . , of Fort Lauderdale, Florida, in
exchange for four (4) police squad cars to be purchased
from Duncan Ford , Key West, Florida." As noted
previously, Wyatt Yacht Sales, Inc. , paid Duncan Ford-
Lincoln-Mercury $24 , 000 on November 11, 1977. This
amount equals $6, 000 each for the four police squad
cars. The actual value of the 44 ' Pacemaker Cabin
Cruiser could not be determined in the absence of an
appraisal and since competitive bids were not received ,
I could not determine the actual value of the property
traded. It is also noted that the amount actually paid
is $12,964 less than the contractual amount.
3. In a letter dated December 19, 1977, Mike Brito Williams
offered "one (1) 1978 Ford LTD II Squad Car" for the
vessels "Early Bird" and "Rosemary." The offer provided
that, . the undersigned will be responsible for all
storage charges to the date of the trade." As noted
previously, Duncan Ford-Lincoln-Mercury received $7, 000
from Brito Enterprises , Inc. , on December 19, 1977. The
actual value of these vessels could not be determined
since there was no appraisal of record and the sale was
not conducted pursuant to competitive bids.
(48) In each of the above "trades" the amounts of money paid to
Duncan Ford-Lincoln-Mercury were less than the actual $9, 241. 29 cost
of a new 1978 Ford LTD II patrol car. I recommend that the Sheriff
make a determination as to the exact amounts still due from each of
these "trades" and then take appropriate action to obtain such
amounts.
(49) As noted above, in at least one instance property seized by
the Sheriff was purchased by a deputy sheriff. In view of the
provisions of the Code of Ethics for Public Officers and Employees
relating to doing business with one' s agency, I recommend that the
Sheriff submit in writing the facts of the situation to the Florida
Commission on Ethics with a request for an advisory opinion concerning
the same under the provisions of Section 112. 322 (2) (a) , Florida
Statutes .
(50) The court on February 21, 1978 (case No . 77-164-CC-18) ,
awarded the Sheriff title to a 1973 Ford truck, F-600. On February
22, 1978, this truck was traded to Duncan Ford-Lincoln-Mercury for a
$2, 300 credit against the purchase of the new patrol cars. On that
same date , Duncan Ford-Lincoln-Mercury gave the Sheriff' s attorney,
Howard Levine , a check for $1, 000, thereby reducing the original
$2, 300 credit to $1,300. The Sheriff' s attorney deposited this $1, 000
in his trust account and on March 2, 1978, paid the $1, 000 to the
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attorney who represented the owner of the truck. In a February 14,
1978, letter to this attorney, Howard Levine stated that, "Upon Final
Hearing of the instant cause and issuance of a new Certificate of
Title, I shall make payment in the amount of one thousand dollars
($1 , 000. 00) to your office A written agreement dated
February 15, 1978, which was signed by Howard Levine, as attorney for
the Sheriff , and Anthony Dieguez, as attorney for the owner of the
truck, provided that the owner consented to the forfeiture; however ,
this agreement did not mention the $1, 000 payment . The owner ' s
attorney, in a letter to Howard Levine dated May 17, 1978, stated that
his office received the $1 , 000 pursuant to the settlement of the
matter and that , "Said check was in exchange for title to the truck as
confiscated by Monroe County Sheriff' s Department ." As his written
response to this comment , the Sheriff has incorporated ATTACHMENT G,
wherein the Police Legal Advisor stated that there were no monies due
the Sheriff until after title to the vehicle had been issued in favor
of the Sheriff' s Department; as to this I note that the official
ownership (as contrasted to the recording of title evidencing
ownership) of the vehicle passed to the Sheriff on February 21, 1978,
through the award by the Court.
(51) As stated earlier , there is no authority under applicable
laws for the Sheriff to dispose of seized and forfeited vehicles by
trading the same to a commercial dealer for a credit against future
purchases. Further , there is no authority for public monies due and
owing the Sheriff to be released into the custody of the private
attorney hired by the Sheriff, and to be placed into this attorney' s
private trust accounts. Public monies of the Sheriff must be held in
the manner set forth in Chapter 219, Florida Statutes . To do
otherwise would interfere with a proper review and accounting for
these funds. Finally, there is no legal authority for the Sheriff to
expend his public funds to make payments to individuals whose property
has been seized as being in violation of the laws of this State. When
making such seizures , the Sheriff is not purchasing this property; he
is attempting to interdict conduct which has been legislatively
determined to be against the policy of this State.
(52) As shown previously in the listing of forfeiture cases filed
during the audit period , the court awarded title to three motor
vehicles subject to existing liens. The Barnett Bank at Midway was
holding a $3, 771. 30 lien against the 1974 Oldsmobile Toronado
forfeited on November 8 , 1977. Records of the Duncan Ford-Lincoln-
Mercury show that on December 2, 1977, a charge of $800 was made to
the account of the Sheriff' s Department. This was for an $800 check
given by Duncan to the Sheriff' s Attorney to pay off a lien against a
1974 Oldsmobile Toronado. A credit of $1, 000 was entered on the
Sheriff Department account for receipt on January 2, 1978, of the 1974
Oldsmobile. The effect of the two entries was a net credit to the
Sheriff' s Department of $200 for the 1974 Oldsmobile . Legal fees and
expenses paid to. the Sheriff' s attorney totaled $710 for this
forfeiture case. On January 20, 1978, this automobile was purchased
from Duncan Ford-Lincoln-Mercury by the Sheriff' s attorney for $1, 000.
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(53) The 1973 Pontiac Grand Prix forfeited on December 23, 1977,
was subject to a $1 , 613. 44 lien in favor of the Navy Key West Federal
Credit Union. The automobile was traded to Duncan Ford-Lincoln-
Mercury on February 6, 1978, for a $1, 400 credit against the purchase
of the new patrol cars. On February 15, 1978, the Duncan Ford-
Lincoln-Mercury charged the Sheriff' s Department and paid $1 , 000 to
the Credit Union to satisfy the lien, thereby leaving the Sheriff with
a net credit of only $400. Legal fees and expenses paid to the
Sheriff' s attorney totaled $519. 96 for this forfeiture case .
(54) There is no authority under applicable laws for the Sheriff
to dispose of seized and forfeited vehicles by trading the same to a
commercial dealer for a credit against future purchases. Further ,
there is no authority for public monies due and owing the Sheriff to
be handled in a manner other than under the procedures set forth in
Chapter 219, Florida Statutes. Consequently, it was improper for the
Sheriff to allow funds due and owing his Office to be placed in the
private accounts of his attorney, which accounts were not subject to
public inspection and review. Lastly, there is no authority for the
Sheriff to utilize the public funds of his Office to satisfy the
outstanding liens on property seized and forfeited .
(55) On March 2, 1978, the Sheriff was awarded title to the 1977
Ford truck subject to a $9, 422. 28 lien in favor of Ford Motor Credit
Company. The balance of this lien was $6, 380. 87 as of March 6, 1978.
On April 17, 1978, the Sheriff gave the truck to Ford Motor Credit
Company in exchange for $600 that was received on April 7, 1978. The
Sheriff' s attorney stated that the $600 was for fees and costs
incurred by the Sheriff as a result of the seizure and forfeiture.
The Sheriff paid his attorney a total of $925. 44 for legal fees and
expenses for this case.
(56) There is no authority for the Sheriff to release a forfeited
vehicle to a lien holder upon payment of a sum of money purportedly
representing fees and costs incurred by the Sheriff as a result of the
seizure and forfeiture.
(57) Statements of account , furnished to the Sheriff by Duncan
Ford-Lincoln-Mercury at different times , showed the status of the
Sheriff' s order for the ten new patrol cars as to the financial
charges and credits at statement date. The Sheriff' s account was
credited with $4,000 for the forfeited 1973 Winnebago Motorcoach .
However , a title certificate dated February 17, 1978, was issued to
Edward L. Stickney of Key West, showing that a motor vehicle license
plate was issued December 15, 1977. The title certificate indicated
that the previous owner of the vehicle was the Monroe County Sheriff' s
Department. There was no appraisal or other record available to
determine the actual value of this vehicle that was "traded" without
competitive bids for $4, 000.
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(58) Additional comments regarding the legal fees and expenses
paid to the Sheriff' s attorney are under the heading , FINANCIAL
OPERATIONS - GENERAL FUND, Revenues and Expenditures (page 2) .
(59) Included in the records provided for audit were three
letters from Lucky Truck Sales, Inc. , and one each from Mike Norne' s
Motorcycle Sales and International Communications , with offers to
purchase or trade equipment and services for some of the seized motor
vehicles and one of the vessels. The terms of some offers included
motor vehicles which had been returned to the owners. Offers from
these three businesses were not accepted since the vehicles and one
vessel mentioned in the offers were otherwise disposed of by the
Sheriff.
Storage of Seized Vehicles and Vessels
(60) Motor vehicles and vessels seized during the audit period
were stored at various locations until being returned to the owner or
forfeited to the Sheriff. Motor vehicles were stored at either
privately-owned automotive service stations or at the county-owned Key
West airport compound . Vessels were stored at privately-owned
marinas. Storage costs were paid by the Sheriff from funds budgeted
in the General Fund . Audit tests revealed a $1 , 473. 50 payment made on
July 27, 1977 , to an automotive service station for towing , storage,
and charging the batteries on four seized motor vehicles. Storage
charges totaled $1 , 290 for the four vehicles , one of which was stored
for 200 days . These vehicles could have been stored at no cost in the
county-owned Key West airport compound .
(61) In addition to the payment of storage costs as discussed in
the preceding paragraph , the Sheriff also made expenditures for
gasoline and repairs to the seized motor vehicles and vessels.
Records indicated that expenditures for gasoline totaled $102. 40 for
the 1973, 23' 3" Seacraft boat that was seized on April 7 , 1977, and
returned to the owner on August 26, 1977. Gasoline was also purchased
for the other seized vessels. Expenditures for repairs included
hauling , bottom cleaning , charging batteries, labor , and parts such as
a starter , battery, fuel pump, and ignition points . The two 1970, 36 '
cigarette boats seized on March 15, 1977, in the Atlantic Ocean
approximately two miles off shore from Tavernier Key, Florida, were
placed in storage at Max' s Marine in Islamorada, Florida . On June 2,
1977, one of these boats was taken to Murray Marine at Key West,
Florida. The other boat remained at Max' s Marine until it was
returned to the owner on January 8, 1978. Records provided for audit
showed expenditures totaled $142.84 for parts and labor and $80. 30 for
gasoline for the cigarette boat that remained at Max' s Marine until it
was returned to the owner . Expenditures for repairs were also made
for other seized vessels and motor vehicles .
(62) There is no legal authority for the Sheriff to expend the
public funds of his Office to make repairs on seized property.
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Negotiated Settlements of Forfeiture Cases
(63) In some forfeiture cases , the Sheriff through his attorney,
Howard Levine , negotiated directly with the owners, the owners'
attorney, or the lienholders for the release of the seized motor
vehicles and vessels to said individuals as an alternative to
completing the forfeiture process. In some instances, upon payment of
"costs" incurred by the Sheriff in connection with the seizure and
custody of the motor vehicles and vessels (including any attorney' s
fees incurred by the Sheriff) , the Sheriff released the seized motor
vehicle or vessel to the party paying these sums (which release
included the dismissal with prejudice of the Sheriff' s petition for
forfeiture) . The amount paid for "costs" in some cases far exceeded
the Sheriff' s actual costs. I am unaware of any provision in Chapter
705, Florida Statutes, which authorizes a county sheriff to release
seized property to a property owner or lienholder upon the payment of
certain costs. I am aware that Section 943. 44 (1) , Florida Statutes,
provides that a seizing agency may release a motor vehicle or vessel
seized thereunder to an innocent party or lienholder upon the filing
of a sworn affidavit by t a�i t party that he had no knowledge of the
alleged violation causing the seizure . However , I would note that
this latter provision contains no express authority for a county
sheriff to assess any costs prior to releasing said property.
(64) In addition, with reference to property released to an owner
or lienholder under Section 943. 44 (1 ) , Florida Statutes, as discussed
above, the general rule holds that the authority of a public officer
to proceed in a particular way implies a duty not to proceed in any
manner other than that which is authorized by law (26 Fla. Jur . Public
Officers s. 107) . It would appear that when acting pursuant to this
Section a county sheriff must receive an affidavit claiming innocence
prior to any release of property. Many seized motor vehicles and
vessels were released by the Sheriff during the audit period without
obtaining this affidavit. The Sheriff stated that these motor
vehicles and vessels were released because he felt he would not be
successful in obtaining their forfeiture . In his written response to
the audit findings, the Sheriff has incorporated ATTACHMENT G, wherein
the Police Legal Advisor refers to my conclusion that an affidavit as
to the innocence of the owner is required as a prerequisite to a
dismissal of a forfeiture proceeding or release of the vehicle under
Chapter 943, Florida Statutes, but he states that an affidavit is not
required as to proceedings under Chapter 705, as to which latter
statement I did not state anything to the contrary.
(65) In some instances, as shown on the listing of forfeiture
cases filed during the audit period, the Sheriff received payments for
"costs" pursuant to written agreements (joint stipulations) . The
payments received as stated in written agreements for the return of
the 1973, 23' 3" Seacraft boat, 1971 Dodge truck, 1973 GMC truck, and
1973 International Lodestar truck were recorded as refunds to the
expense account for legal fees (Other Administrative Expenses) in the
General Fund . The $2, 500 received for "costs" pursuant to a written
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agreement for the return of the vessel "Gambler" was received by the
Sheriff ' s attorney and disbursed to Duncan Ford-Lincoln-Mercury to be
applied against the purchase of the new patrol cars ordered by the
Sheriff. The required affidavit claiming innocence was not on file.
(66) On January 11, 1978, the Sheriff dismissed the forfeiture
case against the vessel "San Rafael ," with the provision that each
party pay its own costs . The Sheriff' s attorney in a letter dated
December 19, 1977, to the owner' s attorney stated that, "We will
release the subject vessel and dismiss pending forfeiture proceedings
upon receipt from your client of a firm order for one (1 ) fully
equipped 1978 Ford LTD II squad car (approximate value nine thousand
and 00/100 (9 , 000) dollars) On January 7, 1978 , the
Sheriff' s attorney received $9, 000 from the owner' s attorney and on
January 16, 1978, disbursed it to Duncan Ford-Lincoln-Mercury to be
applied against the purchase of the new patrol cars ordered . After
being returned to its owner , the "San Rafael" was seized again on
March 25, 1978, loaded with 13 tons of marijuana. The "San Rafael ,"
stuck on a sandbar in the Goulds Channel near Biscayne Bay in Dade
County, was discovered by two Florida Marine Patrol officers , who
piloted the vessel to the U. S. Customs dock in the Miami River. I am
unable to understand why the Sheriff "dismissed" the forfeiture case
for a settlement of "one (1 ) fully equipped 1978 Ford LTD II squad
car" in lieu of following the applicable legal procedures for
forfeiture and disposition.
(67) The forfeiture proceedings against the vessel "Mama Lay"
were dismissed by the Sheriff on March 30, 1978. This was done
pursuant to a written agreement dated March 29, 1978, for One
1978 Ford LTD 2 police vehicle of standard Monroe County Sheriff' s
Department issue . ."
On March 28, 1978, the Sheriff' s attorney
received $6, 500 from the owner of this vessel and on March 29, 1978,
he disbursed the $6, 500 to Duncan Ford-Lincoln-Mercury to be applied
against the purchase of the new patrol cars ordered. Since the
amounts of money received for the return of the "Mama Lay" and the
"San Rafael" were less than the actual $9, 241. 29 cost of a new Ford
LTD II patrol car , I recommend that the Sheriff make a determination
as to the exact amounts due for the return of these vessels and then
take appropriate action to obtain any additional amounts . As
mentioned above, the records do not show why forfeiture proceedings
were dismissed .
(68) As noted above , there is no legal authority for the Sheriff
to voluntarily (without an order from the Court) dismiss a petition
for forfeiture (see Rule 1. 420 (a) (1) , Florida Rules of Civil
Procedure) . Also , I know of no legal authority for the Sheriff to
"negotiate" with the owners of seized property for the payment of cash
or goods in return for the release of said property. In ATTACHMENT G
to the Sheriff' s written response to the audit findings, the Police
Legal Advisor states that I appear to be unaware of the "posotion"
(sic) of the Sheriff as a party to litigation, and he suggests that in
such instances the Sheriff through his attorney may negotiate with
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adverse parties for the efficient disposition of pending litigation;
as I pointed out in my audit comments, there is no authority for the
Sheriff to engage in negotiations involving voluntary dismissals
(without an order from the Court) in instances where the litigation
involves "seized" property; as to this see Rule 1. 420 (a) (1) , Florida
Rules of Civil Procedure, referred to by me in the report; also see
O'Sullivan v. City of Deerfield Beach, 232 So . 2d 33 (Fla. 4 D.C.A.
1970) .
(69) The Sheriff' s attorney received $5, 000 each from the owner' s
attorney for the return of two 1970 model 36 foot cigarette boats .
The $10, 000 was disbursed by the Attorney to Duncan Ford-Lincoln-
Mercury and applied toward the purchase of the 10 patrol cars .
Records provided for audit did not include a written agreement showing
that the $10, 000 received was actually the amount agreed upon for the
return of the two boats. Also , the required affidavit claiming
innocence was not on file.
(70) The Sheriff' s records did not always show the dates that
seized motor vehicles and vessels were returned to their owners. Some
vehicles were returned to their owners prior to the forfeiture cases
being dismissed. As an example , a 1964 Ford bus was returned to its
owner on December 5, 1977; however , the forfeiture case was not
dismissed by the Sheriff until January 31, 1978.
(71) At March 31, 1978, as shown on exhibits A and F, the Sheriff
had a total of $90, 250 receivable from Duncan Ford-Lincoln-Mercury as
a result of the transactions involving the seized motor vehicles and
vessels. This amount was credited against the new patrol cars ordered
by the Sheriff and is shown as a receivable because the new patrol
cars had not been delivered to the Sheriff as of March 31, 1978. This
receivable from Duncan Ford-Lincoln-Mercury conflicts with Section 10,
Article VII, Constitution of Florida, which prohibits any state or
local governmental agency from giving , lending , or using its credit to
aid any corporation, association, partnership, or person. In his
written response to this comment, the Sheriff incorporated an October
13, 1978, letter from his Police Legal Advisor (ATTACHMENT F) wherein
there was discussed the question of whether or not permitting
receivables to the Sheriff' s Office from a private business concern
involved a violation by the Sheriff of Article VII , Section 10,
Florida Constitution: first, as to doubts expressed in said letter as
to whether or not said Constitutional provision has any application to
a county sheriff at all , I would note that it has been applied
expressly to sheriffs (Attorney General ' s opinion No . 075-147, 1975
AGO 255; as also relevant, see Attorney General ' s opinion No . 051-168,
1951 AGO 662, and State v. Okaloosa County Airport and Industrial
Authority, 168 So. 2d 745, and State v. Clay County Development
Authority, 140 So. 2d 576) ; second , as to whether or not said
Constitutional provisions are applicable to a public officer' s
permitting the incurrence of a receivable from a private concern, I
based my postaudit opinion on authoritative rulings such as (1)
Attorney General' s opinion No. 074-250, 1974 AGO 401, wherein
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the Attorney General has ruled that a hospital taxing district does
not have the authority to accept interest-bearing promissory notes for
patients in payment of its charges for hospital services and to
endorse such notes to local financial institutions with recourse as to
principal , because that practice would be using the credit of the
board to benefit private individuals or corporations and would
probably be violative of Article VII, Section 10, Florida
Constitution, and (2) Attorney General ' s opinion No. 077-120, 1977
AGO 258, that a public officer cannot render services to a private
individual prior to the payment for the services rendered , and see
also Sweat v. Walden, 123 Fla. 478, 167 So. 363, holding that a
sheriff may run his office on a cash basis , and (3) Attorney General' s
opinion No. 059-262, 1959 AGO 414, as to option purchase for excessive
amount, and (4 ) Attorney General ' s opinion No. 066-105, 1965 AGO 392,
as to advancement of travel expenses.
(72) Also in ATTACHMENT G the Police Legal Advisor refers to my
criticism as to improper credit extension in violation of Article VII,
Section 10, Florida Constitution; my response to this is the same as
that made above.
Accounting for Transactions in the
Patrol Automobiles Purchase
(73) The handling of public money is governed by Chapter 219,
Florida Statutes. Some provisions of this Chapter are as follows :
1. Section 219. 01 (2) provides that "public money" includes
all money collected by a county officer which he is
required or authorized by law, as such county officer,
to collect.
2. Section 219. 02 (1) provides that it shall be the duty of
each officer to issue a receipt for each collection of
public money made by him and a copy of the receipt shall
be retained as a public record .
3. Section 219. 02 (2) provides that all public money shall be
kept separate in the depository and shall not be
commingled with personal funds.
4. Section 219. 04 (1) provides that all receipts and
disbursements of public money shall be recorded daily in
a cashbook or books that shall be balanced, show the
amount of money on hand , and be a permanent record of
the office.
Most of the money received by the Sheriff with regard to the
transactions involving the seized motor vehicles and vessels was not
handled in the manner prescribed by Chapter 219, Florida Statutes.
The Sheriff' s attorney received and disbursed some of this money
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through his private trust account. Receipts and disbursements of this
money were also made by Duncan Ford-Lincoln-Mercury.
(74) In addition to the many legal questions raised by the above-
stated facts, this system of procuring property by trading forfeited
vehicles deviates from the legislative scheme established for the
appropriation and expenditures of funds by the office of county
sheriff (see, generally, Sections 30.49 through 30. 51, Florida
Statutes) . There is no authority for the Sheriff to engage in a
procedure for the procurement of goods in a manner external to and
apart from the budgetary process set forth in the law.
(75) In the Sheriff' s written response to the findings discussed
in paragraphs 39-40, 42-57 , 59-71 , and 73 of this report, he raises
the issues as to whether his former attorney has violated any laws or
ethical considerations of his profession. I note that there are set
forth in my postaudit comments various instances where the activities
of the office of the Sheriff failed to comport with pertinent
statutory and regulatory provisions specifically referred to therein;
the 'Sheriff would not be relieved of his official responsibility for
the activities of his office, regardless of whether or not he
conducted such activities in accordance with advice he received from
any one or more of his employees. Public officers having the custody
of public funds or property are generally held liable for losses due
to the negligence or misconduct of their subordinates (63 Am. fur. 2d
Public Officers and Employees, Section 295) . Florida' s Supreme Court
has specifically applied to sheriffs the principle that a principal is
responsible for the acts of his deputies (Blackburn v. Brorein, 70 So.
2d 293, Fla. 1954) .
(76) In his response, the Sheriff incorporates the October 2,
1977 , MEMORANDUM to him from his Police Legal Advisor, the same being
ATTACHMENT E. The Memorandum discusses the methodology employed by
the Monroe County Sheriff' s Department in the use or disposition of
vehicles, vessels, or aircraft upon forfeiture of same to the
Department after the successful prosecution of a forfeiture action by
the Department; however, in said discussion there are no provisions of
law referred to which had not been considered by me on postaudit, and
said discussion contained no reference to authorities in support of
the assertions therein made. In addition to the references already
specifically submitted by me to the Sheriff in support of my postaudit
comments, I also find to be relevant, and hereby bring to his
attention, Attorney General ' s opinion No. 076-43, 1976 AGO 75, wherein
the Attorney General found that the "obvious legislative intent" in
the enactment of Sections 943.41-44 , Florida Statutes, the Uniform
Contraband Transportation Act, was to create "uniformity" in the
procedures by which "contraband and that which is used in transporting
this contraband are to be legally seized and forfeited. "
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RECORDS AND INTERNAL CONTROL
(77) Internal control was adequate and the financial records
generally complied with those prescribed under the Florida Sheriff' s
Finance System. Exceptions noted are discussed in some of the
following paragraphs.
(78) Comments regarding the collections and disbursements of
funds for the Sheriff by his attorney and by a local automobile dealer
are under the heading , SEIZED AND ABANDONED PROPERTY (page 6) .
(79) Cash receipts were not recorded on a daily basis, although
required by Section 219. 04 , Florida Statutes. Audit tests revealed a
delay of one to 85 working days from the dates of collection to the
dates these receipts were recorded and a delay of one to 96 working
days from the dates of collection to the dates of bank deposit.
(80) Records provided for audit did not indicate that Sheriff' s
deputies with the authority to make purchases exceeding $100 had filed
financial disclosure statements as required by Section 112. 3145,
Florida Statutes, 1977.
(81) Under the provisions of Section 316.650, Florida Statutes,
the Sheriff is responsible to properly account for all uniform traffic
citation forms issued to him. Records and procedures were in effect
to properly account for the numerical sequence of the forms received ,
issued for use, used , and returned unused.
GENERAL FIXED ASSETS
(82) A statement of general fixed assets is shown on exhibit I.
(83) Fixed assets consisted of tangible personal property such as
motor vehicles, one vessel , office furniture and fixtures, and various
types of law enforcement equipment. Included were the forfeited motor
vehicles and one vessel kept by the Sheriff for official use.
(84) The records and procedures for tangible personal property
generally complied with Chapter 274, Florida Statutes, and the
regulations issued pursuant thereto. Control accounts required by
Section 10. 410 (5) , Rules of the Auditor General , were established
subsequent to the end of the audit period and included balances at
March 31, 1978.
(85) In order for the property records to reflect current
locations for all items, improvements were needed in the procedures
for updating the property records for items moved between locations,
cannibalized , or disposed of.
25
Par .
No .
STATEMENT FROM AUDITED OFFICIAL
(86) In accordance with the provisions of Section 11. 45 (6) (d) ,
Florida Statutes, a list of audit findings was submitted to the
Sheriff. His response to the list of findings is shown on exhibit K.
Attachment D to the Sheriff' s response is a policy manual of 116 pages
and because of volume was not reproduced and included in this report.
However , the original of the attachment is a public record of the
Sheriff' s Office.
EXHIBITS
The following exhibits are attached to and form a part of
this report:
EXHIBIT - A Combined Balance Sheet - All Funds.
EXHIBIT - B General Fund - Statement of Revenues and Expenditures.
EXHIBIT - C General Fund - Statement of Changes in Fund Balance.
EXHIBIT - D Special Revenue Funds - Balance Sheet.
EXHIBIT - E Special Revenue Funds - Statement of Revenues and
Expenditures.
EXHIBIT - F Trust and Agency Funds - Balance Sheet.
EXHIBIT - G Trust and Agency Funds - Statement of Cash Receipts
and Disbursements.
26
Par .
No.
EXHIBIT - H Trust and Agency Funds - Statement of Changes in
Fund Balance.
EXHIBIT - I Statement of General Fixed Assets.
EXHIBIT - J Notes to Financial Statements.
EXHIBIT - K Statement from Audited Official .
Respectfully submitted ,
(Signed) Ernest Ellison, C.P.A.
Auditor General
Audit supervised by:
(Signed) Willard G. Hale
Audit made by:
(Signed) James A. Bell
27
EXHIBIT - A MONROE COUNTY
SHERIFF
COMBINED BALANCE SHEET - ALL FUNDS
March 31, 1978
General Special Trust and General
Fund Revenue Agency Fixed
Funds Funds Assets
ASSETS
Cash on Hand $ 200.00 $ $ $
Cash in Banks 255,384.87 10,974.00 135,866.28
Insurance Claim Receivable 350.00
Due from Sheriff 111.03
Due from Retirement Fund 249.12
Due from Trust and Agency Funds 128.80
Due from Other Governmental Agencies 44,897.00
Due from Duncan Ford-Lincoln-Mercury 90,250.00
Fixed Assets 604,512.99
TOTAL ASSETS $256,073.82 $55,871.00 $226,466.28 $604,512.99
LIABILITIES AND FUND BALANCE
Liabilities:
Accounts Payable $ $50,109.00 $ $
Cash Bonds Held 116,393.95
Civil Deposits 5,164.23
Due to General Fund 128.80
Due to Board of County Commissioners 229.58
Due to Department of Administration 14,529.30
Due to Other Governmental Agencies 5,762.00
Total Liabilities $ 229.58 $55,871.00 $136,216.28 $ - -
Fund Balance 255,844.24 90,250.00
Investment in General Fixed Assets 604,512.99
TOTAL LIABILITIES AND FUND BALANCE $256,073.82 $55,871.00 $226,466.28 $604,512.99
See accompanying notes to financial statements.
28
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30
MONROE COUNTY EXHIBIT - C
SHERIFF
GENERAL FUND
STATEMENT OF CHANGES IN FUND BALANCE
October 1, 1976 to March 31, 1978
Fiscal Year Ended
9-30-77 9-30-78
to 3-31-78
Fund Balance, Beginning $13,637.82(2) $ 34,584.43
Add:
Excess of Revenues Over Expenditures,
Exhibit B 34,584.43 255,844.24
Total Balance and Additions $48,222.25 $290,428.67
Deduct:
Reversion of Excess of Revenues Over
Expenditures to Board of County
Commissioners 13,637.82 34,584.43
Fund Balance, Ending $34,584.43 $255,844.24
See accompanying notes to financial statements.
31
EXHIBIT - D MONROE COUNTY
SHERIFF
SPECIAL REVENUE FUNDS
BALANCE SHEET
March 31, 1978
Total Regional Monroe Youth
Criminal Justice County Aid Bureau
Communications 911 System
System Project
Project
ASSETS
Cash in Banks $10,974.00 $ 5,212.00 $5,762.00 $
Due from Other Governmental Agencies 44,897.00 44,897.00
TOTAL ASSETS $55,871.00 $50,109.00 $5,762.00 $ - -
LIABILITIES
Accounts Payable $50,109.00 $50,109.00 $ $
Due to Other Governmental Agencies 5,762.00 5,762.00
TOTAL LIABILITIES $55,871.00 $50,109.00 $5,762.00 $ - -
See accompanying notes to financial statements.
32
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36
MONROE COUNTY EXHIBIT - H
SHERIFF
TRUST AND AGENCY FUNDS
STATEMENT OF CHANCES IN FUND BALANCE
January 4, 1977 to March 31, 1978
Fund Balance, January 4, 1977
Increase in Funds Credited Against Purchase of
New Patrol Cars Which Resulted from Transactions
Involving Seized and Forfeited Motor Vehicles and
Vessels 90,250.00
Fund Balance, March 31, 1978 $90,250.00
See accompanying notes to financial statements.
EXHIBIT - I MONROE COUNTY
SHERIFF
STATEMENT OF GENERAL FIXED ASSETS
March 31, 1978
General Fixed Assets:
Equipment $604,512.99
Investment in General Fixed Assets $604,512.99
See accompanying notes to financial statements.
33
EXHIBIT - J
(Continued)
MONROE COUNTY
SHERIFF
NOTES TO FINANCIAL STATEMENTS
March 31, 1978
1. The significant accounting policies followed by the Monroe County
Sheriff are described below to enhance the usefulness of the
financial statements to the reader :
Basis of Accounting
The Sheriff' s financial records were maintained on the
cash basis of accounting whereby revenues are recognized only
when cash is received and expenditures are recognized when
cash is disbursed. For reporting purposes, however , the
accrual basis of accounting is followed for the Special
Revenue Funds and the cash basis is followed for the General
Fund and Trust and Agency Funds.
Budget System
Sections 30. 49 and 30. 50, Florida Statutes, require a
sheriff to submit to the Board of County Commissioners a
proposed budget of expenditures necessary to carry out the
duties of his office. The Sheriff is to receive pro rata
monthly distributions from the county for his compensation and
operating expenses based on the approved budgets and budget
amendments.
Tangible Personal Property - General Fixed Assets
This self-balancing group of accounts is used to provide
a record of fixed assets owned by the Office of the Monroe
County Sheriff.
Retirement Plans
The Sheriff and employees of his Office were members of one
of the retirement plans administered by the State of Florida,
Department of Administration, Division of Retirement. These plans
required contributions by the Office of the Sheriff at stated
percentages of compensation dependent upon the individual plan.
39
EXHIBIT - 3
(Continued)
MONROE COUNTY
SHERIFF
NOTES TO FINANCIAL STATEMENTS
March 31, 1978
2. Excess of revenues over expenditures for the fiscal year ended
September 30, 1976, is shown in this report as the "Fund Balance,
Beginning (October 1, 1976) " since Section 30. 50, Florida
Statutes , provides that the Sheriff shall refund to the Board of
County Commissioners all unexpended balances at the end of each
fiscal year and that he has 30 days after the end of the fiscal
year in which to voucher all expenses incurred . Since the.
reversion of the excess of revenues over expenditures is payable
to the Board of County Commissioners within 30 days following the
close of the fiscal year , such reversion is reported within the
next fiscal year . Excess of revenues over expenditures accrued
and remitted for the fiscal years ended September 30, 1976, and
September 30, 1977, was as follows :
Accrued Remitted Unremitted
Fiscal Year Ended
September 30, 1976 $13,637. 82 $13,637.82 $ - -
Fiscal Year Ended
September 30, 1977 $34, 584. 43 $34, 354.85 $229. 58
40
MONROE COUNTY EXHIBIT - IC
SHERIFF
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
•
n!Cx
Afirr . .
�
• R 11.1.1,1 Al A. FREEMAN, .Ili. • SHERIFF MONROE COUNTY
TELEPHONE.
RRv%Fan x4.
MARATHON 74l-90E4
VT AN Ml TUN e1,2.4Pt
KEY wz.'I.nARHIA Into December 12, 1978
Mr. Ernest Ellison, Auditor General
Attention Mr. George Warner
State of Florida
Office of the Auditor General
P. O. Box 1735 .
Tallahassee, Florida 32302
Dear George,
In regards to our telephone conversation I am hereby
attaching our replies to the tentative findings of the
auditors report dated November 17, 1978.
I am attaching a schedule of responses and have placed
numbers to the items and have assigned numbers to the para-
graphs in your report so that you may match up the action
that we have taken to alleviate the various situations as
mentioned in the audit. In addition to this outline of
replies I am attaching attachements which I would like to
be included as my schedule of answers make reference to
these attachements which is a general order number 78-0-1
which is a centralized property control procedure manual.
And also special orders which we have implemented.
I hope that you can match these satisfactorily. If
you have any questions or need additional data please
advise.
Sincerely,
WILLIAM A. FREEMAN, JR. ,
Sheriff of Monroe County
WAFj r:vs
enclosures
41
EXHIBIT - K MONROE COUNTY
(Continued) SHERIFF
STATEMENT FROM AUDITED OFFICIAT.
January 4, 1977 to March 31, 1978
Audit
Report
Paragraph
Number Response
(8) A. No response required.
(10) B. I have prepared and implemented Special Order
78-SO-3 to provide procedures to be followed
relating to travel vouchers and expenditures
(see Attachment A. ) .
(11) C. See (B. ) above.
(14) D. Special Order 78-S0- 2 has been prepared and im-
plemented to provide procedures to be followed
in regards to accountability of long distance
telephone calls. (Sec Attachment B. )
(15) IL I have directed a member of my staff to audit
travel expenditures described in this item, and
if there are any Over payments , I will take steps
to receive reimbursement .
(18) F. To provide procedures to be followed in idcntifyiag
and accounting for disbursements for repairs and
services , I have prepared and implemented Special
Order 78-SO- S. (Sec Attachment C. )
(29-31) G. I have prepared and implemented General Regulation
78-0- 1 to provide procedures to be followed in
receiving, controlling, and disposing of lost ,
abandoned , and seized property. (Sec Attachment
D. )
(32) H. See (G. ) above.
(33) 1 . See (G. ) above.
(34) J . See (G. ) above.
(35) K. See (G. ) above.
(36-37) L. See (C. ) above.
42
MONROE COUNTY EXHIBIT - K
SHERIFF (Continued)
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
Audit
Report
Paragraph
Number Response
M. In regards to your statements and conclusions re-
garding the seizure and disposition of vehicles and
vessels, the transactions involved in trading vehicles
and vessels for patrol cars , and the handling of publi:
funds by the Sheriff' s former attorney, Howard Levine ,
I have attached a copy of two memoranda (see Attachment
E and F) by Attorney Levine, and his response to your
conclusions (see Attachment G) for your information.
In regards to these matters I have relied on the
(39-40) opinion and advice of Mr. Levine as an attorney at law, '
(42-57) duly qualified and licensed under the laws of the State
(59-71) of Florida, and he has handled in its entirety the
(73) mechanics of alt the transactions mentioned in your
report. If it is your opinion that this attorney has
violated any laws of the State of Florida or has
violated any ethical considerations oC his profession ,
please inform me at once in writing as to what specific
laws or ethics he has violated so that I may take
appropriate action in bringing to the attention of the
State Attorney your allegations of criminal activity,
or in notifying the Florida Bar Association that you
have found Attorney Levine' s actions to be a violation
of the ethics of his profession.
N. See (M. ) above.
(79) 0. I have prepared and implemented Special Order
78-S0-4 concerning procedures to be followed in
making bank deposits (see Attachment I I) , and have
directed a member of my staff to prepare an order
outlining procedures to be followed for recording
cash receipts.
(80) P. I have written to the Commission On Ethics for an
opinion concerning this item, and ❑m awating their
reply. A copy of my request is attached (see
Attachment l) .
(85) Q. See (G. ) above.
43
EXHIBIT - K MONROE SHERIFF
(Continued) SHERIFF
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
OFFICE OF THE SHERIFF r
�F
-� �,
MONROE COUNTY. FLORIDA � FM
SPECIAL ORDER
DATE: November 1, 1970
NUMBER: 78-SO-3
SUBJECT: Travel Vouchers: Completion and Submission of,
Responsibility for, Advance Travel, Direct Payment
to Vendors Prohibited
I. APPLICATION: This Special Order applies to all
personnel of the Department.
II. DISTRIBUTION: This Special Order shall be dis-
tributed to all affected personnel.
III. REFERENCES: 1. Section 112.061, Florida Statutes
2. Auditor General Report, 1978
IV. AUTHORITY: This Special Order is promulgated
and instituted by Order of Sheriff William A.
Freeman, Jr.
V. COORDINATION: None required.
VI. BACKGROUND: There has not been any established
procedure promulgated to Department personnel
for their guidance in completing and submitting
travel vouchers and claims for expenses incurred
for travel other than verbal directions and past
accepted practice. As a result, a written direc-
tive is needed to establish a procedure.
Past performances by Department personnel has
resulted in many instances of travel vouchers
and claims for expenses for travel not being
submitted in the proper manner or in a timely
fashion.
There have been many instances of direct pay-
ment to vendors being made when no emergency
existed or if an emergency travel was required
the proper documentation has not been completed
which is in violation of Florida Statute.
ATTACHMENT A
WILLIAN A. FREEMAN ISheifi)
44
MONHOF. SIIEKIFI` EXHIBIT - K
SHERIFF (continued)
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
1 VII. POLICY: It is the policy of the Monroe County
Sheriff's Department that all present personnel of
2 the Department shall comply with the requirements
of this Special Order.
3
VIII. ACTION:
4
A. Department personnel who are required to travel
5 in the course of their official duties will be
compensated in the amount and manner proscribed
6 by law.
7 B. (1) Department personnel who are required to
travel may receive advance travel funds to
8 cover anticipated coats of travel as authorized
9 by Section 112.061 (12) , Florida Statutes.
30 (2) Any such travel advances received by De-
partment personnel are for official use only
11 and shall be strictly accounted for by the per-
son receiving.
12 (3) At the conclusion of any travel for which
13 advance travel funds were issued, the traveling
employee shall return any unexpended funds
14 along with the travel voucher required in Sec-
tion D(1) of this Special Order, to the Divi-
16 sion of Fiscal and Resource Management.
16 (4) If the traveling employee expended funds
in excess of the advance travel funds, he shall
17 be compensated accordingly as proscribed by
law.
18 (5) At the conclusion of any travel for which
19 advance travel funds were issued, further dis-
bursement by personnel of the Division of Fis-
20 cal and Resource Management is prohibited ex-
cept in the amount of additional expenses in-
curred by the traveling employee in excess of
the advance travel funds issued. No warrant
22 shall be issued by any personnel orthe Divi-
sion of Fiscal and Resource Management for the
23 full amount of the travel expenses claimed in
the voucher when advance travel funds have been
24 issued to a traveling employee.
25 C. (1) The Department will not make direct pay-
Special Order
No. 78-SO-3
45
EXHIBIT - K MONROE SHERIFF
(Continued) SliER I FF
STATEMENT FROM AUI)JTKIY DFFLCIAI.
January 4, 1977 to March 3L, 1.978
1 ment to vendors for meals and lodging except
2 when the Department requires personnel to
travel on emergency notice and when the indi-
vidual directed to travel requests the Depart-
3ment to pay those authorized expenses directly
4 to the vendor.
5 (2) Emergency travel will be authorized by
written directive or may be verbally author-
ized6 during exigent circumstances. If ver-
bally authorized, it will be confirmed by
7 written directive issued by the authorizing
supervisor.
8 (3) The accounting file for any such emer-
y gency travel shall include a copy of the writ-
ten directive authorizing such emergency tra-
10 vel and a copy of the written request made
by the traveling employee for the Department
11 to make such direct payments.
12 (4) No disbursements direct to the vendor
shall be made by personnel of the Division of
13 Fiscal and Resource Management unless and un-
til the requirements of subsection (3) above
14 have been met.
15 (5) It shall be the responsibility of the
traveling employee to obtain copies of the
16 written directive and his/her request for
direct payment and deliver them to the Drvi-
17 s- tir of Fiscal and Resource Management within
forty-eight (48) hours following such emer-
1s gency travel. In the event that disbursement
is required direct to the vendor prior to the
19 conclusion of the emergency travel, the au-
thorizing supervisor shall deliver a copy of
20 I the written directive and a memo certifying
that he has received a verbal request from the
21 traveling employee that direct payment be
made by the Department to the vendor.
22
D. (1) A travel voucher shall be completed and
23 submitted for all official travel incurred by
Department personnel.
24
(2) It shall be the responsibility of the
25 traveling employee to complete and submit the
Special Order
ND. 78-SO-3
46
MONROE SHERIFF li%III If I'f - K
SHERIFF (Continued)
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 11, 1978
1 required travel voucher to his immediate super-
visor for approval no later than two (2) work-
2 ing days following the conclusion of such tra-
vel and the Supervisor shall submit the travel
3 voucher to the Division of Fiscal and Resource
Management no later than five (5) working days
4 following the conclusion of such travel.
5 E. Failure to comply with the provisions of this
Special Order will be considered to be a fail-
6 ure to obey a lawful and direct order.
7 F. REVOCATION: This Special Order shall be in
effect for sixty days from the date of publi-
cation unless rescinded by order of the Sheriff.
910
11 (i'�"�' TT
13
14
16
17
1s
19
20
21
22
23
24
25
Special Order
NO. 78-SO-3
47
EXHIBIT - K MONROE SHERIFF
(Continued) slIER I.FF
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
OFFICE OF THE SHERIFF
i '
MONROE COUNTY, FLORIDA y'
� e
SPECIAL ORDER
DATE: December 1, 1978
NUMBER: 78-SO-2
SUBJECT: Long Distance Telephone Calls; Accountability;
Responsibility for Recording; Method of Recording
I. APPLICATION: This Special Order applies to all
personnel of the Department.
II. DISTRIBUTION: This Special Order shall be
distributed to all affected personnel.
III. REFERENCES: Recommendation of Auditor General
Report, 1978.
IV. AUTHORITY: This Special Order is promulgated
and instituted by order of Sheriff, William A.
Freeman, Jr.
V. COORDINATION: None required.
VI. BACKGROUND: The Sheriff's Department has con-
tinued to receive criticism from the Auditor
General in his review of accountability proce-
dures for expenditures in the area of telephone
expenses.
This Special Order is instituted for the purpose
of establishing those needed procedures to assign
responsibility, provide accountability, and es-
tablish a uniform method of recording long dis-
tance telephone calls for which the Department
must make disbursements.
VII. POLICY: It is the policy of the Monroe County
Sheriff's Department that all present personnel
of the Department shall comply with the require-
ments of this Special Order.
VIII. ACTION:
A. Telephone calls accountability: All long
distance telephone calls initiated by auth-
WILLIAM A. FREEMAN MerlinATTACHMENT B
48
MUNROI'I SIIP:R I.EF EXHIBIT - K
SHERIFF (Continued)
STATI€MENT FROM AUOTTRI) OFF LCIAI.
January 4, 1977 to March 31, 1978
1 orized personnel of the Department shall be recorded
on the telephone logs provided for that purpose.
2
8. It shall be the responsibility of the person making
3 such long distance telephone calls to record the
calls made in the proper manner on the forms so pro-
d vided.
5 C. All long distance telephone calls covered by this
Special Order shall be recorded on the form titled
6 "Telephone Call Record" which shall be maintained in
each division by and through the direction of the
7 Division Supervisor.
8 D. Long distance telephone calls which are initiated by
any employee or deputy using direct dialing, credit
9 card, or Watts methods shall be deemed to be covered
by this Special Order and will be accounted for and
10 recorded as provided for in this procedure.
11 E. It shall be the responsibility of each Division Super-
visor to deliver the "Telephone Call Record" for his
12 division to the Division of Fiscal and Resource Man-
agement no later than the fifth day of each calendar
13 month for the preceding months calls.
14 F. Failure to comply with this Special Order will be
considered to be a failure to oLey a lawful and di-
15 rect order and shall be disciplined at the discretion
16 of the Sheriff, or in accordance with established
procedures by other authorized supervisors of the
17 Department.
18 O. REVOCATION:
19 This Special Order shall be in effect continuously
from the date of publication un1 ss rescinded by or-
20 der of the Sheriff.
21 eio R E UNT
22
23
24
25
Special Order
No. 78-S0-2
Attachment: Telephone Call Record
49
EXII LINT - K MIINIIOP: SIIiII I IT
(Contlnucd) SIIER I Fir
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
OFFICE OF THE SHERIFF
MONROE COUNTY, FLORIDA
a14'" �r
SPEC AL ORDER
DATE: November 1, 1978
NUMBER: 78-SO-5
SUBJECT: Repairs and Services: Accounting for and Dis-
bursements for.
I. APPLICATION: This Special Order shall apply
to all personnel of the Department.
II. DISTRIBUTION: This Special Order shall be
distributed to all affected personnel, func-
tions and units.
III. REFERENCES: Auditor General's Report of
Annual Audit, Monroe County Sheriff's Depart-
ment, 1976.
IV. AUTHORITY: This Special Order is promulgated
and instituted by order of Sheriff William A.
Freeman, Jr.
V. COORDINATION: None required.
VI. BACKGROUND: Past. accepted practices have re-
sulted in criticism by the Auditor General in
the area of proper accountability and disburse-
ments for repairs and services of Department
equipment.
VII. POLICY: It is the policy of the Monroe County
Sheriff's Department that personnel of the De-
partment shall comply with the requirements of
this Special Order.
VIII. ACTION:
A. All materials, repairs or services made on,
or supplied for any Department equipment
shall be receipted to the individual re-
questing the material, repair or service and
ATTACIDIENT C
WILLIAM A. FREEMAN(Sheriff)
50
MONROE. SHERIFF EMIT RI'? - K
SING IFF ((7on[I hued)
S'IATEKEN1 FROM AII11'I'RII OFF ICIAI.
January 4. 1977 to March 31, 1978
1
1 the written receipts shall bear the signature of the
2 Department individual making the request.
3 B. All receipts for materials, repairs or services shall
4 be written and shall have the amount and cost affixed
5 thereon and signed by the Department individual re-
6 questing and receiving.
7 C. The requesting Department individual shall insure tha•
8 the written receipt bears the identifying number of
9 the Department, serial number, tag number or regis-
10 tration number of the equipment, car or boat, if
11 applicable, for which the material, repairs or ser-
12 vices are provided.
13 D. The written receipts for such materials, repairs or
Is services shall be submitted to the Division of Fiscal
15 and Resource Management at least monthly unless an-
16 other schedule is specified.
17 E. The Sheriff mayadd, delete, change or modify any or
18
all provisions of these Department orders and memo-
19 tanda at his discretion. Failure to comply with pro-
20 visions of this Special Order will be considered to
21 be a failure to obey a lawful and direct order.
22
F. Revocation: This Special Order shall be in effect
23
continuously from the date of publication unless re-
24
scinded by order of the She '
25
RIFF, MONROE COUNT •
Special Order
No. 78-SO-5
51
EXHIBIT - K MONROE COUNTY
(Continued) SHERIFF
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
MEMORANDUM
TO: William A. Freeman, Jr. , Sheriff
I
FROM: Howard Levine, Police Legal Advisor.l( '
' 1
DATE: October 2. 1977
RE: Forfeit vehicles, vessels and aircraft - Dispositon.
You have requested our opinion with respect to the methodology to be
employed by the Monroe County Sheriff's Department in the use or dis-
position of vehicles, vessels or aircraft upon forfeiture of same to
the Department after the successful prosecution of a forfeiture action
by the Department.
The Department deals routinely with two distinct factual situations in
the area of forfeiture. In the first the owner of the vehicle, vessel or
aircraft is arrested while using the property in a mmnner contrary to law
and criminal charges are filed against the owner. We note here that we
are limiting our discussion to cases involving the unlawful transportation
of controlled substances in violation of the Florida Comprehensive Drug
Abuse Prevention and Control Act (Chapter 893, Florida Statutes); however,
the principles are equally 'applicable to other vehicle forfeiture pro-
visions such as violation of the Florida eamhlinq law (Chapter 849,
Florida Statutes). In the second type of case, the owner of the property
is not involved in the underlying criminal transaction; is unknown; is
a fictitious or non-existant person or entity; or is beyond the juris-
diction of the court.
There are two separate legal mechanisms by which the Department may obtain
forfeiture of vehicles, vessels and aircraft. These are discussed below.
The first is the Florida Uniform Contraband Transportation Act (Sec.
943.41 et seq. , Florida Statutes). The Florida Uniform Act requires that
the State Attorney proceed against the vehicle, vessel or aircraft by
means of a Rule to Show Cause in the Circuit Court. This procedure
requires that personal service of process be had against the owner.
The Act also provides that it shall not apply as against "innocent" owners
or lienholders. The burden of proof is upon the State to show that the
lawful owner acted without knowledge of the use of the property for un-
lawful purposes. The Act permits the owner to obtain release of the
property upon the filing of a sworn affidavit that the owner was without
knowledge of the use of the property. In the event the lawful owner
can not be located, the court must appoint an attorney ad litem to rep-
resent the interests of the law tiY owner. This attorney, r[y law, is
requlreu not to waive any legal defense which may he asserted on behalf
of the absent owner. The Department assures the responsibility for
payment of the fees of the court appointed attorney in an aneunt to be
determined by the court. Upon forfeiture of the vehicle, vessel or
ATTACIIMENT E.
WILLIAM L. FREEMAN (Stoma') -- ---- -
52
MONROE COUNTY EXHIBIT - K
SHERIFF (Continued)
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
or aircraft, the Department may use the property or may dispose of it
by sale at public auction to the highest bidder for cash without appraisal.
The proceeds of the sale are to be paid into the fine and forfeiutre fund
of the County.
T
e
d
ocedural
n
prroperty, lawr(Chapter 705,oFloridaves the use of the Statutes), specificallyda abandned
Sectiono705.09-
15, Florida Statutes. The abandoned proerty law requires that the Sheriff
file a report with the County Court, which report,as applicable to this
discussion,is in fact a Petition for Forfeiture. The report/petition is
in rem, that is it proceeds directly against the property itself. Where
tTie property is subject to forfeiture, the Sheriff may seek forfeiutre of
the property. In addition if the property is readily adoptable for use or
sale by the Sheriff, the Sheriff may file a requisition with the County
Court, requesting the award of the peroperty to the Sheriff upon forfeit-
of the property by the Court. Notice of the pendency of the proceeding
need only be given to lienholders, however, such notice to a lienholder
must be by personal service of process. Notice to owners or other inter-
ested parties may be by publication in accord with Chapter 50, Florida Stat-
utes. In a Chapter 705 proceeding the burden of proof Is upon the owner
to show that the property was unlawfully used without his knowledge or
consent. There is no requirement for the appointment of an attorney
ad litem for absentee owners. The Sheriff may proceed by default.
Upon forfeiture of the property, the Sheriff may use the property, or
upon order of the Court nay sell the property to the highest bidder
for cash a, a public auction. In this case the proceeds of the sale
are paid into the state treasury for the benefit of the state school fund
Section 705.14, Florida Statutes).
In light of the foregoing background,the two questions which require
discussion are as to which forfeiture mechanism is most advantageous for
the Department, and what are the Department's options upon forfeiture.
With repect to the forfeiture mechanism of choice, I must be noted that
the Uniform Act requires the approval of another agency, the State Attorney,
as a prerequisite to commencement of a proceeding. ln accord with your
wishes, I have been appointed a Special Assistant State Attorney for the
sole and limited purpose of prosecuting actions under the Florida Uniform
Act. However, my appointment requires the prior approval of the State
Attorney before any action may be commenced. The Florida abandoned
property law permits unilateral action on your part. Actions under
the Uniform Act are in the Circuit Court, while abandoned property cases
are in the County Court. Because the Department must frequently pay
storage charges on a daily basis, the smaller dockets and faster hearing
dates available in the County Court offer a real advantage to the
Department. It must also be noted that on a per case basis, court costs
and fees are less in the County Court.
53
EXHIBIT - K MONROE COUNTY
(Continued) SHERIFF
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
Proceeding by way of Chapter 705 offers a tactical advantage to the
Department_ In a 943 action, the State must carry the burden of proof.
In a 705 case. the defendant/owner has the burden of proof. This
tactical advantage becomes significant in those cases where there are
problems of proof based upon the timing of police enforcement action.
In a case where we have intercepted the narcotics operation prior to
unloading, it is virtually impossible for us to prove that the owner
of a land-based vehicle had knowledge that the vehicle was going to be
used for transportation of controlled substances. This is true a fortiori
where the owner is absent or is a fictitious person or entity. Use of
the 705 procedure also obviates the expense of paynent of the fees of an
attorney ad litem. which fees may he quite high in a complex or contested
matter. Perhapsthe greatest advantaye of the 711C procedure is the
fact that the Sheriff is not required to obtain personal ur substitute
service of process on the owner. We have no problem obtaining personal
service on lienholdors, since these are generally financial institutions.
Whore the owner is a fictitious person or entity , it is impossible to
obtain service. It should be pointed out that a large percentage of our
cases involve such fictitious owners. finally, where the owner is
fictitious, the Omer is not sui juris, and has no standing before the
court. This virtually insures that he Sheriff will obtain forfeiture of
the subject property.
for the above reasons it is our recommendation that the Monroe county
Sheriff's Department continue to prosecute all appropriate forfeiture
cases through employment of the Chapter 705, Florida Statutes, procedure.
The next question concerns the Sheriff's options for disposition of
the property upon forfeiture. Both Chapter 705 and Chapter 943 permit
the Sheriff to use the property in his Departmental operations. Chapter
705 contains the additional requirement that the Sheriff file a requisition
where he desires to use the poperty. This presently is done on a
routine basis. In addition, both Chapter /VS and Chapter 943 provide
that if the Sheriff wishes to sell the property, such sale must he at
public auction to the highest bidder for cash. finder fhapter 705 the
proceeds are deposited into the slate treasury fur the state school fund.
Under Chapter 943 the proceeds are deposited into the County's fine and
forfeiture fund. While in a 943 action the County could credit such
an'unt back to the Sheriff, a question exists as to whether in so doing,
the County Conmission would not take the amount ,h-; a credit against bud-
getted anxmnts. this is nut a satisfactory result_ Similarly, the
cneditinq of such ,m,nmts to the state school fund in unsatisfactory,
since the funds in hay opinion are more properly directed to the agency
responsible for the seizure. , for these reasons sale of the property
does not appear to be an all rat ti ye a I torrid i ve under ci ther Chapter
705 or Chapter 9l.1.
If the Sheriff places the forfeit property into service in the
Sheriff 's Department , both statutes accord the Sheriff the right to use
the property. While there is no legal precedent on the question, we
54
MONROE COUNTY EXHIBIT - K
SHERIFF (Continued)
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
assume that the usage of such properly is in accord with the Sheriff's
usage of other, si ml tar property which the Sheriff may acquire through
other means, such as through budget expenditure. In that case the
Sheriff is free to dispose of the property by trading it for other property
in the same manner as the Sheriff trades used patrol vehicles for new
patrol vehicles. There is nothing in either Chapter 705 or Chapter 943
which prevents this type of disposition of the forfeit property.
Chile the award or forfeiture by the Court :Inc( the subsequent issuance
of a title in and to the property serves to vest the Department with
title to the property; such title will not prohibit the original owner
from filing a Suhsequent Or col Won] action contesting_ the forfeiture.
We are presently defending one action where a motion to vacate the forfeit-
ure was pot filed until three meths after the award of I orieiture.
Naturslly, where such proceedings are commenced by the owner, the Sheriff
is required to defend them. Such actions may also include as a party the
purchaser of the vehicle or the party to whom the vehicle is traded.
fommierciat brokers anticipate such legal actions and deal with them as a
cost of doing business. They are Prepared to indemnify the Sheriff in the
event of litigation to the extent that they will not exert any right of
action against the Sheriff. Such commercial brokers are also willing
to take the vehicle "as is, where is" with no guarantees ar warranties
incluig
avantageos
tor t-endepartmentetoadeal withecommercialsbrokers n int the sdissposition uof
turfcit property.
Finally, it must be stated that upon award of the vehicle, vessel ur
aircraft, the Sheriff becomes custodian of the property and thereafter
assumes responsibility for the safekeeping or the property. Any dan.age
or loss to the property may become the personal liability of the Sheriff,
particularly r:here the Sheriff has faileT[oinsurc or properly protect
the proh.'rty. for these reasons it is advantageous to the Sheriff to
dispose of the praperty as quickly as Possible alter award of the property
by the court. This also minimizes deterioration of the property from disuse.
For the above reasons it is our reconmenda t ion that forteit property
be placed on the Department's inventory and,then, be disposed of as
quickly as possible ill' trading the property to a commercial broker for
other property nhich the Defiar tmcnt requires.
:nk
55
EXHIBIT - K MONROE COUNTY
(Continued) SHERIFF
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
HOWARD LEVINE
ATTORNEY AT LAW
001 RIV9l REA(]i DRIVE
FORT LAUDERDALE, FLORIDA 33315
(305)7641590
Ott'Loher LI, 1978
V1illtam ,1. Frr••nr.,u , Jr'. . :;h:•ri f ,
D.U. box ]:fill
IQ t ltet:t . FI. :I:N) IJ
U. :n' Sheriff LI-, c,u.tl,.
Flits is ill t'rsptmse IL/ I hall i:nl'I inn el y mI' leis ley 4,1 4.7•I :.1,.•r -1,
1978, regarding Lho op'ntiea el Il to :old i Ltn' a it It reHairI tat I 'u„
tart that the lr:uli nit of Iii vehirl o:: and re:un.ls might cent ra':enc
Art tele VII , Soil ion 10, of the Florida Coned tut ion.
The initial question is whether Article VII , Section 10 of the
Constitution even applies to the Sheriffs or the State of Florida.
However, for purposes of this discussion. I shall assume tha I. the
provisions of Section 10 do apply to you.
Article VII , Section 10 relates specifically to the pledging of
credit . The Section prohibits ownership in or the use of govern-
mrntal credit or taxing power in aid of a private rtclor entity .
It was clearly the intent of the Legislature to proscribe the use
Of governmental credit or taxing bower Le secure , sellnteral ,ge,
or In ar :o: indurrni •nt fur the lend in1 of money I„ private
interests . In our circumstances vehicles and ves::el': which were
attar/led to your use by the court v.••ro I radii nt Ptiegin Fetid. Lincoln-
Slercury lice ::qu:ul tail . 'I'll:s r,•prul raI . weer pt1l'''11.1!:eil I F.:rd
Motor ('.ompluly by 11uuean tit th his own maids, A IodFrr rrrdl L w:lS
nceordod IOr IIle rot.tit Inc, :. 'I'h itt i -. in no watt/ di 11,gout. : r:.m
the sttutdord pivots' of trudtnl; old .egnad e:n',. Inc ntv ,tn, :•
p tact ire generally tollowed by lie .sleet lls :tat'. I ,nt t•nlLrr,
ag011t• ICS 01 IhI:: :It al r , 1t nu limo mar. Iht ,"III ••I tour nlI WO,
5lonroo Count ur the Saute •II FL,ritl:l employ-, d in ,ny ten n,..•t Iron
wi ill print:an . It ltrlt the cell l Cies nr r•• :II • re: ed ••I crier
to delivery of Rho :.quad ears, n rot.rt :.pnndini' :'r, dlt te:.;: Ii �tn
with respect to the cost for purribitte of the In-.t ceLirIt 'I'bis
was a simple bushing:.. Lrat::action and ,nie winch doe:: net ri : : to
the majesty Ul' toast i i nna l dimensions
[ I you hncr .au\ lurlbor •,:I Ions It l t•ass t•t•1 Ir,•r It• et.nt Ili Inc.
trnjy yours .
1
- ` ATTACHMENT F.
Ii.,ward Lr V itie
1'ol ice L. ,:a II \dc i:au•
Ill.:gR
56
MONROE COUNTY EXHIBIT - R
SHERIFF (Continued)
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
MEMORANDUM
TO: William A. Freeman, Jr.
Sheriff
FROM: Howard Levine, Esq,
Police Legal Advisor
SUBJECT: Auditor's Report
You have asked for my comment on the Preliminary and Tentative
findings of the auditor. I am, by reference, incorporating
into this Memorandum my previous Memorandum to you regarding
the same subject .
On Page 8 the Auditor concludes that the Sheriff should seek
the forfeiture of property pursuant to Section 943.44,
Florida Statutes. That conclusion by the Auditor is improper
as it would forclose your right as a Constitutional Officer
to an election of remedies. In making such a conclusion, the
Auditor has over-stepped the boundries of his office and
approved and generally accepted audit procedures.
With respect to disposition of property, it is my position
that the trading of a vehicle or vessel for items of Police
equipment constitutes a valid "use of the property". The
Auditor concludes that funds in the Sheriff's account at
Duncan Ford were diverted from the State School Fund, requiring
the conclusion that the State School Fund is or was entitled
to the funds. In many of the cases noted by the Auditor,
negotiations for settlement or the matter were either for a
"stripped" Police vehicle or an agreed amount of cash. With
respect to the 1973 Ford Truck (Case No. 77-164-('C) , the
Auditor concludes that it is improper for monies due the
Sheriff to be released into the custody of the Sheriff's
Attorney. In the context of the case, there were no monies
due the Sheriff un tit after it Le to the vehicle had been
issued in favor of the Sheriff's Department.
The Auditor concludes that an Affidavit as to the innocence
of the owner is required as a prerequisite to dismissal of a
forfeiture proceeding or release of the vehicle. I have already
commented on that point on a prior memorandum. It is sufficient
to note that Chapter 993 provides that the seizing authority
may release the property upon the receipt of an Affidavit
as to innocence. The Affidavit has no relevance to a
proceeding pursuant to Chapter 705 and it certainly is not
required. With respect to the Auditor's comment as to the
ATTCHMENT G.
57
EXHIBIT - R MONROE COUNTY
(Continued) SHERIFF
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
MEMORANDUM (Cont'd)
Page 2
pledging of the Sheriff 's credit, I would direct your atten-
tion to my prior memorandum regarding this subject.
Throughout his entire discussion, the Auditor appears to
be unaware of the posotion of the Sheriff as a party to
litigation. I would suggest in such instances, that the
Sheriff, through his Attorney, may negotiate with adverse
parties for the efficient disposition of pending litigation .
As I have stated previously , the fart is that there is no
law which specifically prohibits the Sheriff from using
forfeit property by trading the property for badly needed
Police equipment and thereby securing a double benefit
for the citizens within the Sheriff's jurisdiction. In
the final analysis, thedirect use of drug smuggler's property
to acquire Police vehicles and other Police equipment, is
both innovative and just.
58
MONROE SIIP.N I FrP:%Ili 11 P( - K
SHE 11FP (Continued)
STATEMENT FROM AMMO OFFICIAL
January 4, 1977 to March 31, 1978
OFFICE OF THE SHERIFF o.
VV�
�f :2
MONROE COUNTY, FLORIDA Gl
ro ,.
SPECQ ;If L ORDER
DATE: November 1, 1978
NUMBER: 78-S0-4
SUBJECT: Accounting: Dank Deposits by the Division of
Fiscal and Resource Management
I. APPLICATION: This Special Order shall apply
to all accounting personnel assigned to the
Division of Fiscal and Resource Management.
II. DISTRIBUTION: This Special Order shall be
distributed to all affected personnel, func-
tions and units.
III. REFEL':NCES: Auditor General's Report of
Annual Auait, Monroe County Sheriff's Depart-
ment, 1978.
IV. AUTHORITY: This Special Order is promulgated
and instituted by order of Sheriff William A.
Freeman, Jr.
V. COORDINATION: None required.
VI. BACKGROUND: Past procedure used in the making
of deposits on all bank accounts of the Depart-
ment and the handling of receipts has resulted
in deposits and receipts not being handled in
a timely and efficient manner.
Therefore, a need exists for a written procedure
directive to be formulated and promulgated to
establish written procedures in this area of the
Department's operation.
VII. POLICY: It is the policy of the Monroe County
Sheriff's Department that personnel of the Divi-
sion of Fiscal and Resource Management shall com-
ply with the requirements of this Special Order.
ATTACHMENT H
&ILLIAN A. FREEMAN Igw,inI
59
F.%IRRIT - K MONFIIE SIIFAUVV
(Continued) SHERIFF
STATEMENT FROM AMMO OFFLCIAI.
January 4, 1977 to March 31, 1978
1 VIII. ACTION:
2 A. All funds, in whatever form, received by the
Division of Fiscal and Resource Management for
3 bonds, fines, civil deposits, and other re-
lated receipts which are received on a daily
4 basis, shall be deposited in the proper bank
account of the Department during the following
$ business day. Receipts which are received on
a Friday, if possible, will be deposited on
6 Friday at the conclusion of the business day.
If not possible, then the deposit shall be
7 made no later than the following Monday.
8 B. All funds, in whatever form, which are receive.
on a periodic basis, such as disbursement by
9 Monroe County to the Sheriff of Monroe County,
shall be deposited in the proper bank account
10 of the Department no later than the conclusion
of 'the following business day. If received on
31 a Friday, if possible, at the conclusion of
that business day. If that is not possible,
32 then the deposit shall be made no later than
the following Monday.
13
C. The Sheriff may add, delete, change or modify
14 any or all provisions of those Department or-
ders and memoranda at his discretion.
15
Failure to comply with provisions of this Spe-
16 cial Order will be considered to be a failure
to obey a lawful and direct order.
17
D. Revocation: This Special Order shall be in
18 effect continuously from the date of publica-
tion unless rescinded by rder of the Sheriff.
19
20 •SR
D NROE i
21
22
23
24
25
Special Order
No. 78- SO-4
60
MONROR SIIERIFF EXHIBIT - R
SHERIFF (Continued)
STATEMENT FROM AUDITED OFFICIAL
January 4, 1977 to March 31, 1978
rw�Y
s!7o.
e eriff g of NII.IIAH \ [DEEM%N. Ill • sHEDIFF Moon fcOIYII'
.uTELEPHONE.
Iln .1,
mon.ATms slims!
..WYNTJIAw~ S,,,, December 1, 1978
Lawrence A. Gomez,
Executive Director
Commission on Ethics
P. O. Box 6
Tallahassee, Florida 32302
Dear Sir:
The Monroe County Sheriff's Department recently received
criticism from the Auditor General Office during an annual
audit that deputy sheriffs of an agency who are authorized
to make purchases or authorize expenditures exceeding one
hundred ($100.00) dollars have not filed financial disclosure
statements as required by law.
Legal counsel for the Sheriff has rendered us the opinion
that Florida Statute 112. 3145, specifically exempts deputy
sheriffs from the provision of that statute by their specific
ommission from Section 112. 3145(1) (a) 3.
The Sheriff, therefore, is respectfully requesting the
Commission to render an opinion to settle the controversy as
set forth.
Sincerely,
WILLIAM A. FREEMAN, SHERIFF
LAWRENCE A. MEGGS, SGT.
Planning c Research Division
WAF:LAM:vs
ATTAMMENT I
61